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9 September 2022

Conservators & Copyright

By Amalyah Keshet

On 5 October 2018, the artist known as Banksy witnessed the performance of his then-latest stunt: the shredding of a print of his street-art painting, “Girl with Balloon,” minutes after its sale by Sotheby’s for $1.4 million.  The incident made for very lively conversation, mostly initiated by questions like “Wait, can he do that?”  “Can’t he get sued?,” or “Can it be restored?”  It was indeed an incident that raised legal, artistic, and ethical questions – all of them fascinating. The art market being the art market, however, far from angering its new owner the instantly infamous work (officially renamed “Love is in the Bin”) probably doubled in value.  

It also raised questions about artists’ rights and owners’ rights, and thus responsibilities of collectors, collecting institutions, and conservators.  Quite a lot, in fact, for one shredding prank.  

Artists’ rights and owners’ rights 

One of the first things we learn working in a museum or archive is that our institution owns the physical works in its collection – art, photographs, music manuscripts, dance notations, videos, audio files, digital files, time-based media, movies, books, and maps — but not the copyrights in them. “We don’t own the copyright” is the starting-line assumption if a work is still within its term of copyright protection.  In fact generally, the only things we can do with copyright-protected items in our collections – without express permission — is to display them, lend them, photograph them for collections management and insurance purposes, and care for them physically.  In rare cases, an artist may have transferred their copyright in certain – not necessarily all — works to the museum or institution, but by the same token the artist may have transferred or sold their copyrights to a third party, such as a publisher or film production company. If not, then by default, the artist’s heirs would inherit the artist’s copyrights, which are valid in all of these cases during the life of the artist and for 70 years after his or her death (in most but not all countries). After that the works enter the public domain, regardless of who owned the copyrights.

Property law determines whether an owner has a right to repair, change, or destroy property that they own, while copyright law aims to encourage creativity by providing authors, artists and other creators with economic and moral rights. When an item of property in question is a work of art (or other protected creative work), these two fundamental rights can overlap. This conflict or overlap is fundamental for understanding the connection between copyright and conservation. 

The copyright laws of various countries differ but find common ground in international treaties, negotiated via the World Intellectual Property Organisation (WIPO). The primary treaty is the Berne Convention, which establishes core standard principles relative to the scope and nature of rights, limitations to rights, moral rights and beneficiaries of copyright.  Basic copyright protection applies on a worldwide basis in all countries which have signed up to the Berne Convention, but national legislation can vary in its details. 

The legal concept of copyright developed differently over time in the UK, Europe, and the US. The UK and the US primarily protect the economic right of the copyright holder under common law whereas most European countries have a droit d’auteur (right of the author) system, which is a more individual personal right tied to the identity and personality of the author or artist. The difference is clearly apparent in the approach to and strength of protection for moral rights.  In the US, VARA, the Visual Artists Rights Act), 17 U.S.C. § 106A, was passed only in 1990 — and it is significantly more limited. It grants protection only to certain works of visual art, but not to other works protected by copyright. 

Legislation and preservation

Copyright in EU countries falls under the European Union harmonisation directives, which provide some consistency on the protection of rights, the term of copyright protection, etc., in the member states. Article 5, regarding works held in the collection of publicly accessible libraries and museums, provides a limited preservation exception for these institutions. 

Likewise, in the UK, the Copyright Designs and Patents Act 1988, s42(1), (2) contains a preservation exception for works in the permanent collection of a collecting institution. Legislation was updated by the Copyright and Related Right Regulations 2003, implementing rules on copyright to the digital environment. 

For conservators, knowledge of these basic preservation exceptions is important, but perhaps even more so is familiarity with “moral rights.” Conservators and curators today are sensitive to a professional obligation to consult living artists when making decisions about the treatment or restoration or even display of works that are in their care.  But some may not be aware of the legal reasons this is imperative in a collecting institution. Basic understanding of artists’ legal rights — moral rights and who owns an artist’s copyright – can not only prevent misunderstandings, but can literally prevent lawsuits, financial claims, and actual loss of collection items. 

Moral rights 

In short, copyright protects the economic rights of the artist: the exclusive right to make and distribute copies of a work, the right to perform it, the right to make or license adaptations, the right to communicate a work to the public in the first place.  

Moral rights are a subset of copyright, artists’ rights providing creators with a “right of integrity” whose aim is to protect an artist’s intent, identity and reputation as the creator of a specific work or body of work.  

The specific moral rights granted to artists can vary from country to country, but generally protect the identification of a work with its creator: moral rights usually include the right to attribution and prevention of misattribution, the right to prevent harm to or destruction of physical artworks, the right to disown a work or declare it unfinished.  Moral rights may or may not be inheritable or transferrable, depending on the jurisdiction, and the duration of protection varies; in France they are inalienable and perpetual. 

As a result, the right not to have a work subjected to derogatory treatment, no matter who owns it, could arise whenever any treatment causes distortion or mutilation of a work, or is otherwise prejudicial to the reputation of the artist: where loss has been caused through a lack of care in display, storage, security, conservation or restoration. 

“We have seen cases where, for example, an artist has been contacted to repair an artwork, as part of an insurance claim, and has unilaterally ‘withdrawn’ their certificate of authenticity, in respect of the damaged work,” says Adrian Parkhouse, a partner at Farrer & Co., London. While this has apparently not yet been tested in court, “it is clearly an instrument being used by artists to exercise some control over their art long after it has been sold.” 

In addition, “If the artist had included contractual obligations in an agreement to have the work displayed or stored in a particular way—perhaps in a deed of gift to a museum or in a sale agreement with a buyer … the artist might still have a cause of action against the museum or particular buyer if they breached the terms of the contract,” although the artist would have to prove personal loss or damage to reputation to make a successful claim. 

Perhaps unsurprisingly, there is speculation that the blockchain has a role to play here — NFTs in particular.  “NFTs referring to physical works—like those being developed by Artory” a digital registry for art, “can…record specifications for how people interact with the physical artwork. These [“smart”] contracts can include specifications for where the work is displayed and conserved, for example, or how often it is appraised and inspected,” says Nanne Dekking, the chief executive and founder of Artory.  Regina Harsanyi is also active in this area, and is engaged in developing NFT-collection-care protocols that reflect artworld conservation standards. Conservators won’t be the only ones paying close attention.

Further reading: 

https://www.tate.org.uk/research/tate-papers/08/digitisation-and-conservation-overview-of-copyright-and-moral-rights-in-uk-law

https://www.create.ac.uk/blog/2022/08/26/destroying-or-creating-art-through-intentional-destruction-practical-consequences-of-the-legal-uncertainty/

https://www.theartnewspaper.com/2021/06/08/slash-and-burn-does-artistic-sabotage-always-pay-off

https://artreview.com/will-the-artworld-nft-wars-end-in-utopia-or-dystopia/

Last but definitely not least:

Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures, by Joseph L. Sax.

Our team of experts can help with everything required for copyright compliance and asset exploitation. For more information about our consultancy services and training courses please contact us.